Author Archives: Michael Froomkin

New Florida Bar Anti-Advertising Rule Threatens Legal Bloggers?

At Prawfsblog Lyrissa B. Lidsky has a good question for members of the Florida Bar who blog: Will this post get me disbarred?

Here's the setup:

The Florida Bar has a new attorney advertising rule that aggressively regulates attorney speech on the Internet.  Florida Bar Rule 4-7.6  Indeed, the new rule regulates attorney speech so aggressively that it might even apply to this blog post.  Until recently, the Florida Bar considered all attorney websites and web communications as information provided upon the request of a prospective client and did not apply its attorney advertising rules to them.  But now the Florida Bar has extended its substantive advertising rules except for its filing requirement to all “Computer-Accessed Communications” by Florida attorneys. 

The first problem with the new Bar rule is its exceeding broad definition of “computer-accessed communications” as “information regarding a lawyer’s or law firm’s services that is read, viewed, or heard directly through the use of a computer.”  The definition includes “but [is] not limited to, websites, unsolicited electronic mail communications, and information concerning a lawyer’s or law firms’ services that appears on Internet search engine screens and elsewhere.”  Under that definition, if I write in this post that I’m a defamation expert, I’m giving you information regarding my services, and I could be subject to reprimand, suspension, or disbarment if I don’t meet the substantive requirements of the Florida Bar’s advertising rules.  Rule 4-7.6(d).  What are those substantive requirements? 

The substantive rules provide, among other things, that an attorney website can’t “describe or characterize the quality of legal services being offered.”  Rule 4-7.2(c)(2) 

As Prof. Lidsky goes on to discuss, there are some serious First Amendment problems with this rule.

There are times when I wish I'd gone ahead and taken the Florida bar exam when I moved here. This is not one of them.

(In order to discourage retirees from trying to keep a hand in when the move here, the state of Florida has zero reciprocity with other states, and makes it quite difficult for those of us who have practiced elsewhere to actually apply to take the exam — we need to list every client we ever represented, and try to get a letter from them, something that would be very hard for a former associate in a large firm, who touched many files, mostly with foreign clients. For more as to why I never got around to it, see If You Don't Ask, You Don't Get. But Some Things You Shouldn't Ask.)

I imagine this new Florida rule will not be a problem for pseudonymous Rumpole so long as no unmasks him. But will it in any way stifle David O. Markus?

Posted in Law: Practice | 1 Comment

TSA Fully-Body Scanners Have Approximately Zero Expected Saftey Value When Controlling for Minimal Extra Risk of Cancer Due to the Screenings

Hoisted from Dave Farber's mailing list:

From: Ethan Ackerman
Date: January 12, 2010 1:22:00 PM EST
To: dave[AT]farber.net
Subject: Re: [IP] Stop the panic on air security – err, no, irradiate it
Reply-To: eackerma[AT]u.washington.edu

Greetings Dave,
Since the Schneier editorial brings up the subject of thinking rationally about small risks…

IPers following the debate around TSA's whole body scanning might have noticed that not too much ink has been spilled over the fact that these imagers are a source of x-rays – ionizing radiation. Ionizing radiation (at the right dose and probability) can cause or increase the likelihood of cancer and other ailments.

But one reason there's not been a big hullabaloo is because the risks from these machines are rather small, though not zero. How small a risk? About as (un)likely as a terrorist attack, it turns out.

The risk of being on a plane subject to a terrorist attack is ~1 in 10 million. [1]

Similarly, a single backscatter scan corresponds to a 5% increased risk of fatal cancer in ~1 in 10 million cases. ( While reliable studies suggest that a scan-level dose would result in a statistically verifiable increase in fatal cancer risk in about 1 scan in 100,000, the “5% increased risk at 1 in 10 million” conclusion is supported with more studies than the former, and more statistically sound.) [2]

So how many additional cases of fatal cancer (or just debilitating cancer, or just cataracts) is it worth for us as a society to cause an innocent traveler in order to possibly detect a drug smuggler or would-be-bomber?

In how many people are we ok with just increasing the likelihood of cancer for this kind of security?

Can you give a number? The TSA and FDA already have.

[1] http://www.fivethirtyeight.com/2009/12/odds-of-airborne-terror.html [www.fivethirtyeight.com]

[2] http://www.fda.gov/ohrms/dockets/AC/03/briefing/3987b1_pres-report.pdf [www.fda.gov]

-The dose-adjusted nominal risk estimate of fatal cancer associated with exposure from a single backscatter x-ray scan is 0.0000005% for a member of the general public, at a 5% increased risk of fatal cancer per Sievert dosed and a single scan dose of 0.1 microSieverts.

Although, I suppose, someone might argue that the risks are distributed slightly differently in that all of the cancer risk goes to the traveling public, while some of the terrorism risk is shared by people in the flightpath if a plane lands on them.

Posted in National Security | 1 Comment

Iguanas Dropping From the Trees

When it gets cold around here, iguanas fall from the trees: ABC's rather over-the-top version of the story.

Here's a much more sober video account from Sherry L. Schlueter, Executive Director of the Wildlife Care Center in Ft. Lauderdale, who explains how to handle a frozen iguana.

Posted in Miami | Comments Off on Iguanas Dropping From the Trees

Herald Does UM Immigration Law Clinic

The Miami Herald, or its new online local section (I can't quite tell), did a very positive writeup of UM Law's new Immigration Law Clinic.

It's at UM law students contribute to an international affair.

Posted in U.Miami | Comments Off on Herald Does UM Immigration Law Clinic

The Internet is the Real Superhighway

Wendy Grossman has an interesting net.wars column up, Car talk, in which she expands on a CNBC suggestion that the Internet displaces the car:

… today's young people find their independence differently: through their cell phones and the Internet. … As children, many baby boomers shared bedrooms with siblings. Use of the family phone was often restricted. The home was most emphatically not a place where a young adult could expect any privacy.

Today, kids go out less, first because their parents worry about their safety, later because their friends and social lives are on tap from the individual bedrooms they now tend to have. And even if they have to share the family computer and use it in a well-trafficked location, they can carve themselves out a private space inside their phones, by text if not by voice.

That rings true: I had put down our eldest's seeming lack of enthusiasm for getting a driving license to his taste for being chauffeured — beats walking to the parking spot. But maybe it's the times and the PC in his room.

Posted in Internet | 4 Comments

Privacy is More About Control than About Content

Does the latest silly PR campaign on Facebook tell us something about changing attitudes towards privacy? The viral campaign is to have women change their 'status' to a color — the color of their bra — ostensibly because this this will 'raise awareness' of breast cancer. I'll leave it to others to dissect the merits of the campaign. (Although this line is pretty good: Telling the world your bra color does not raise awareness of breast cancer. It raises awareness of your bra color.) What interests me is the privacy angle.

In Black and white and red all over – what do those bra-color facebook updates tell us about privacy?, Prof. Wenger argues that the right frame to think about the privacy issue is 'spheres':

A fundamental notion in privacy is the idea of different spheres. This can be described as the classic public/private spheres, …

… I wonder how to analyze the mass voluntary participation of thousands of people engaged in a group sharing of a highly intimate piece of information. This is being done by women, who are particularly vulnerable to privacy attacks (especially relating to their intimate lives). And remember, facebook’s privacy default status is now that updates are open to the world! It’s striking to see crowds happily helping to assemble their own digital dossiers.

Here at the fringes of the public sphere, we're into spheres, but I wonder if that's the very best way to think about it. That said, there's clearly something going on here. As noted by the BBC, How online life distorts privacy rights for all, routinized online disclosure of facts once seen as private can reinforce changing conceptions of what's public and what's private. (Assuming, that is, that people, and especially those now young, continue to collapse the psychological distance between the virtual and real. But, back to the BBC🙂

People who post intimate details about their lives on the internet undermine everybody else's right to privacy, claims an academic.

Dr Kieron O'Hara has called for people to be more aware of the impact on society of what they publish online.

“If you look at privacy in law, one important concept is a reasonable expectation of privacy,” he said.

“As more private lives are exported online, reasonable expectations are diminishing.”

If I were in a quibbling mood, I'd suggest that the online behavior is actually somewhat less significant than this suggests both because I think it reflects something going on anyway out in the regular world (“meetspace” or “meatspace”) and because I think for most people the privacy implications of adding color or phrase in a Facebook listing is much less than it seems.

But I think that the real issue is that this is the wrong tempest in the wrong teapot.

To me the significant aspect about the Facebook incident, and to a large extent the issues that the BBC news story discusses, is that people are posting items about themselves. They control what to release and, initially, where. They decide whether to tell the truth. Is Jane Doe really wearing a chainmail bra? To me, that assertion is much less of a privacy issue than if Richard Roe is secretly photographing Jane with an infrared detector. If Jane is bragging about her SCA chops or perhaps even making it all up, she's in control of her data, at least initially.

True, important issues do arise when the self-reported information is republished, packaged, re-used in ways that Jane doesn't expect (or, worse, had taken reasonable precautions to prevent), and these can be thorny problems. Nevertheless, in a First Amendment world where we protect the right to repeat of the truth, or what in good faith is reasonably believed to be the truth, many of these problems have an easy legal if sometimes uncomfortable social resolution.

No, the issues we should be worried about are involuntary or coerced exposure of personal data, including intimate information, not voluntary clothing self-disclosure. This is especially true in a world in which many people in the US are less in the thrall of nudity or partial nudity taboos than might have been the case fifty years ago (although I suspect there are many variations here by decade and nation), but other people both here and abroad remain very much concerned about body image privacy.

x-ray-specs.gifThus, rather than worry about self-reported textual color information on Facebook, I think privacy scholars and advocates should be thinking hard about a much more important real-world problem: whether the US and other governments are going to mandate digital strip-searches as a condition of air travel. Even if the 'option' of a full-body search exists, few will opt for it because it too is intrusive, and because there's no guarantee it won't be so slow as to result in a missed flight.

It seems to me that the intrusion into privacy is much more severe for those who experience having some stranger use real-life X-ray specs on them as an invasion of bodily privacy than anything anyone could ever do to themselves on Facebook. How the full-body scanners are implemented will effect the extent of the privacy problem; some have suggested, for example, that the people viewing the images might be off-site somewhere where they would not be able to see the subject of the scan (or, conveniently, vice-versa), and they would text or radio in the all-clear or not depending on what they saw. There are also issues as to what measures will prevent storing the images.

Anything that creates some distance will make linking pictures to people harder, but it won't make it impossible. And of course it is only a matter of time before some enterprising scanning agent figures out how to take pictures of a digitally nude celebrity and sell them to the highest bidder. Entrepreneurs take note: both celebritybodyscan.com and celebrityairportscan.com have already been registered.

We don't yet know the details of how TSA proposes to manage the new scanners, and it is not obvious that TSA will disgorge the information willingly, so it is good to see that the Electronic Privacy Information Center has filed a Freedom of Information Act lawsuit to try to get more information about the program. Unfortunately, I suspect that many of the most interesting parts about how the images will be handled will fall under FOIA exception (b) which protects from disclosure all information “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and …are in fact properly classified pursuant to such Executive order.”

To me, privacy is not primarily about no one knowing things about me. Rather, it is about my ability to control what information I choose to make known about me and to whom, and to some degree to control — or in some circumstances at the very least stay informed — about the further sharing of that information. And that's why digital strip searches, a coerced privacy invasion by the government for what may or may not be a reasonable means to enhance the safety of all air travelers in the wake of the underwear bomber — seems a much bigger deal than self-reported possibly fictional underwear colors.

Posted in Law: Privacy | 1 Comment